JK 526 
1877 
.C6 
Copy 1 






:r,:e:m:.a.:r,:k:s 



OF 



MR. JUSTICE CLIFFORD 



IN THE CONSULTATIONS OF THE 



ELECTORAL COMMISSION 



■V& 




RESPECTING THE 



ELECTORAL VOTES OF THE STATE OF FLORIDA. 



WASHINGTON : 

JOSEPH L. PEARSON, PRINTER 

1877. 




J 



:r,:e:m: a.:r,:k:s oif 

MR. JUSTICE CLIFFORD 



Intrductory Explanations. 

More than one return, purporting to be certificates of the 
electoral votes of the State of Florida, having been received 
by the President of the Senate, the same, after having been 
opened by that officer in the presence of the two Houses, 
and objections thereto having been filed in the manner re- 
quired by law, the certificates, votes, and all papers accom- 
panying the same, together with such objections, were duly 
submitted to the judgment and decision of the Electoral 
Commission to decide which, if either, was the true and 
lawful vote of the state from which the returns were re- 
ceived. 

Prior to the commencement of the hearing the Commis- 
sion adopted certain rules to regulate the course of its pro- 
ceedings, to two of which it is proper to refer in order to a 
better understanding of what took place. They are in sub- 
stance and effect as follows: (1) Objectors to a certificate 
may select two of their number to support their objections 
and to advocate the validity of any one or more of the 
other certificates, under the prescribed limitations. (2) 
Counsel, not exceeding two on each side, may afterwards 
be heard on the merits of the case. 

Pursuant to the rule first named the objectors to the Hayes 
certificate, called certificate No. 1, were fully heard, and the 
objectors to the Tilden certificates, called certificates Nos. 
2 and 3, were also fully heard. Special leave was given by 
the Commission that three counsel might speak on each 
side, and the time allowed by the rule was enlarged, 



Pending the argument it was suggested to counsel that it" 
they proposed to introduce evidence to support their objec- 
tions it would facilitate the hearing if they should make 
known to the Commission in some proper form what the 

evidence was that they proposed to introduce. Offers of 
proof were accordingly made by the counsel supporting the 
objections to certificate No. 1, as appears in the published 
proceedings of the Commission. No otter of proof was 
submitted to the Commission by the counsel supporting the 
objections to the other two certificates, at that stage of the 
hearing. 

Without entering into details, suffice it to say that a por- 
tion of the time allowed under the rule for the discussion 
of the merits of the case having been spent before the offer 
of proof was made, it was moved by Mr. Justice Miller 
" that counsel be allowed two hour3 on each side to discuss 
the question whether any evidence will be considered by 
the Commission that was not submitted to the two Houses 
by the President of the Senate, and if so, what evidence can 
properly be considered, and also what is the evidence now 
before the Commission." Debate ensued, but the motion 
was adopted and the argument proceeded under that regu- 
lation and restriction. 

Both sides were heard, and at the close of the arguments 
all persons present, except the members of the Commission 
and the officers thereof, retired and the Commission went 
into consultation with closed doors. Opportunity for de- 
bated was extended to every member of the Commission 
and all participated in the discussion before the final votes 
were taken. Certain remarks were made at the close of 
the debate by Mr. Justice Clifford, in substance and effect 
as follows : 

Remarks. 

Since the case was submitted to the Commission pursuant 
to the recent act of Congress, I have carefully examined 
the several certificates in question and all the written ohjec- 






tions to the same transmitted here by the President of the 
Senate, in order to ascertain what the matters in contro- 
versy are and what questions are presented to the judgment 
and decision of the Commission. Beyond doubt those doc- 
uments, with the accompanying papers, were intended by 
the act of Congress to present the matters in contestation 
to be submitted to the judgment and decision of the tribu- 
nal created for the purpose of hearing and determining 
such controversies. Fifteen commissioners have been ap- 
pointed for the purpose, and they, as required by the act of 
Congress, have severally been sworn impartially to examine 
and consider all questions submitted to the tribunal, and to 
render a true judgment in the premises, agreeably to the 
Constitution and the laws. 

Sitting under that act of Congress I shall assume that it 
is a constitutional act and that it correctly describes and de- 
fines the duties and the jurisdiction of the Commission. 

Differences of opinion existed upon that subject before 
the act of Congress creating the Commission was passed. 
Two theories were advanced — one that the power to decide 
what persons were duly appointed electors in a state is 
vested in the President of the Senate, and the other that 
the sole power in that regard is vested in the two Houses 
of Congress. Discussion upon that topic is closed by the 
act of Congress, which makes it the duty of the Commission 
in a case submitted to it under the second section of the act, 
to " decide whether any and what votes from such state are 
the votes provided for by the Constitution of the United 
States, and how many and what persons were duly ap- 
pointed electors in such state." 

Appointed as the members of the Commission have been 
under that act, they are bound by its provisions, and it is 
the duty of the tribunal to perform in good faith the duties 
which it prescribes. 

Three returns or certificates are submitted to the Com- 
mission from the State of Florida, and the tribunal is re- 
quired to decide what persons are duly appointed electors 



from that state. Certificate No. 1, if unexplained, shows 
that the Eayes electors are duly appointed, and certificates 
Nos. 2 and 3 show that theTilden electors were duly elected 
by it majority of the votes cast at the election. 

Such an issue must be derided by the Commission, and 
all just and intelligent persons must admit that it cannot 
be properly decided without an inquiry into the facts and 
the hearing of the parties. Inquiry to a very limited ex- 
tent, it is admitted, may he made, hut the amazing propo- 
sition is advanced that the inqniry cannot extend beyond 
the examination of the papers presented by the President of 
the Senate to the two Houses and which were subsequently 
submitted to the Commission. Attempt is made to support 
that proposition chiefly by the argument of inconvenience. 
Should the inquiry be opened to a wider investigation the 
argument is that the Commission would not be able to 
close its duties in season to render the electoral votes ef- 
fectual for the purpose prescribed by the Constitution. 

Support to that view is attempted to be drawn from the 
most extravagant suppositions that ingenious minds can 
devise or imagine. If the suggestions were well founded 
they would be entitled to weight, but a few observations, I 
think, will be sufficient to show that the supposed dangers 
are merely imaginary and without any foundation whatever. 

Arguments unsupported by fact are entitled to no weight 
and may be dismissed without consideration as mere sound 
and fury, signifying nothing. Judging from the issues pre- 
sented by the certificates, and the objections thereto filed 
in behalf of the contestants, I assume that the Commission 
it not expected to enter into any scrutiny of the votes cast 
at the general election of the state, nor of the qualifications 
of the voters who voted for President and Vice-President 
at that election. Nothing of the kind is suggested in any 
one of the written objections and no such extravagant prop- 
osition has been advanced by any member of the Commis- 
sion. Matters of that sort may, therefore, be dismissed 
without further remark ; and it is equally clear that no at- 



tack is made upon the local officers who presided in the 
precincts, nor does any one of the objections filed in the 
case impeach their conduct in receiving, sorting, or count- 
ing the votes or in declaring the result. Questions of the 
kind sometimes arise in other forums which give rise to 
difficult and protracted investigations, but no question of 
that character is involved in this investigation, nor can it 
be without a willful departure from the issues presented in 
the written objections filed in the case. 

Impartial men everywhere must admit that the act of 
Congress makes it the duty of the Commission to decide 
" what persons were duly appointed electors " in that state, 
and if so it may be assumed that no member of the Com- 
mission is willing to be deterred from performing the pre- 
scribed duty by any imaginary dangers, which have no real 
foundation in fact. 

Sufficient has already been remarked to show that none 
of the objections to the certificates require any scrutiny into 
the votes cast at the primary election or call in question the 
returns made by the officers who presided in the precincts. 
Throughout, the controversy has respect to the conduct of 
the state board of canvassers in dealing with the returns 
made by the county canvassers to the secretary of state. 

Precinct inspectors are required to make duplicate certifi- 
cates of the result and deliver one of the same, with the poll- 
lists, to the clerk of the circuit court and the other to the 
county judge. Six days later the county canvassers are 
required to meet and to make and sign duplicate certifi- 
cates containing in words and figures, written in full length, 
the whole number of votes, the names of the persons voted 
for, and the number of votes given to each person for such 
office. Duplicate returns must be made and recorded, and 
the requirement also is that one of the duplicates shall be 
transmitted by mail to the secretary of state and the other 
to the governor. Provision is also made for a board of state 
canvassers, whose duty it is, within a prescribed period, to 
canvass the returns of election received from the several 



6 

counties, and to determine and declare who shall have been 
elected to any BUCh oiliee or as such member, OS shown by 
such returns. 

State canvassers are to determine and declare who have 
been elected, as shown by the county returns received from 
the county canvassers. Unless these views can be buc 
fully controverted, and I submit with entire confidence that 
they cannot, then it follows that there are but three ques- 
tions involved in the main feature of the resolution adopted 
by the Commission on motion of Mr. Justice Miller, 
which I assume is the proper guide of the Commission in 
the present consultation. 

1. Whether the certificate 'No. 1 is absolutely conclusive 
of the election of the Hayes electors and that it has the effect 
to exclude all evidence to prove the matters charged in the 
written objections submitted to the Commission at the same 
time with the certificate. 

Charges of the kind involve the imputation of fraud, 
perjury, and forgery, and if evidence to sustain such impu- 
tations cannot be admitted, then the Congress, the Presi- 
dent, and the Supreme Court have been misled and 
deceived. 

2. Whether the action of the board of state canvassers 
is conclusive that the Hayes electors were duly appointed, 
and that it has the effect to shut out evidence to show error, 
fraud, perjury, or willful forgery. 

3. Whether certificates ISTos. 2 and 3 are valid, supported 
as they are by the action of all the branches of the state 
government ; which, if admissible in evidence, shows to a 
demonstration that the Hayes electors w r ere never duly 
appointed, and that they are mere usurpers. 

When a person is elected to the office of elector, the 
requirement of the state statute is that the governor shall 
make out and sign a certificate of his election, cause the 
same to be sealed with the seal of the state, and transmit 
the same to the person elected to such office. Certificates 
of tin; kind to persons chosen to any state office are made 



out by the Secretary of State, whose duty it is to transmit 
the same to the person having the highest number of votes 
east, and the provision is that the " certificate shall be prima 
facie evidence of his election to such office." 

Votes cast for electors are canvassed for the same pur- 
pose as votes cast for state officers, and the certificate given 
by the governor to an elector is given for the same purpose 
that the certificate of the secretary of state is given to a 
person supposed to be elected to a state office, and there is 
no reason for holding that the certificate of the governor 
was intended to have any other or different effect than the 
certificate of the secretary of state when given to a state 
officer, as required by the same statute. 

Truth and justice, it is admitted, ought to prevail, but the 
argument is that such an investigation is impracticable for 
the want of time to complete it, and in order to give plaus- 
ibility to that theory it is assumed that the objectors to 
certificate jSTo. 1 propose to enter into a scrutiny of the 
qualification of the voters and of the votes cast at the 
primary election, and of the conduct of the officers who 
presided in the precincts, and of their returns. Assump- 
tions of the kind are entirely without foundation, as suffi- 
ciently appears from the certificates and the written objec- 
tions filed to the same, which clearly present the issues to 
be tried and determined by the Commission. 

1. Certificate No. 1, dated December 6, 1876, signed by 
M. L. Stearns, governor, certifies that Frederick C. Hum- 
phreys, Charles H. Pearce, William H. Holclen, and Thomas 
W. Long have been chosen electors of the state, agreeably 
to the laws of the state and in conformity to the Constitu- 
tion of the United States. 

Six specifications of objections were duly filed to that certi- 
ficate, which in substance and effect are as follows : (1) That 
the persons therein named as electors were not appointed as 
such in the manner directed by the legislature of the state. 
(2) That they were not appointed electors of President and 
Vice-President in such manner as the legislature of the state 



8 

directed. (3) That the qualified voters of the state did, 
on the Beventh of November, 1876, execute the power of 
appointing such electors, and did appoint Wilkinson Call, 
James L. Yonge, Robert B. Hilton, and Robert Bullock to 
l)r such electors. (4) That certificate Xo. 1 is untrue, and 
was corruptly procured, and made in pursuance of a con- 
spiracy therein more particularly described. (5) That the 
papers falsely purporting to he votes are fictitious and 
unreal, and were made out and executed in pursuance 
the ^anie fraudulent conspiracy. (6) That the printed 
certificate has been annulled and declared void by the 
executive, and by the legislature and judiciary of the state. 

Apart from that the objectors also allege that certificate 
Xo. 1 was annulled by the subsequent certificate to the 
Tilden electors, by which the latter were declared duly ap- 
pointed in the manner provided by the legislature of the 
state and the Constitution, the legislature having declared 
that the title of the persons named as electors in the last- 
named certificate is good and valid. Nor do the objectors 
rest the case entirely upon the certificate of the governor 
and the legislative act, but they also set up the judgment 
of the circuit court rendered in the suit in the nature of 
quo warranto, and allege that it was adjudged by the court 
in that case that the four persons named in certificate No. 
1 were not elected, chosen, or appointed electors for the 
state, aud that the court also decided that the}' were mere 
usurpers, and were not entitled to assume or exercise any 
of the powers or functions of electors of President and Vice- 
President. 

Superadded to those general specifications they also file 
a special objection to one of the four persons named in 
certificate No. 1, to wit : that Frederick C. Humphreys was 
ineligible as an elector because he held at the time of the 
election the office of shipping commissioner, which, under 
the act of Congress of the seventh of November, 1876, is 
an office of trust and profit within the meaning oi' the Con- 
stitution. 



9 

On December 6, 1876, the attorney-general of the state, 
one of the board of state canvassers, executed a certificate 
to Wilkinson Call. James E. Yonge, Robert B. Hilton, 
and Robert Bullock, called certificate No. 2, that it ap- 
pears by the authentic returns on file in the office of the 
secretary of state that they, on the 7th of November, 1876, 
were chosen the four electors of the state, and that the law 
of the state makes no provision whereby the result shown 
by those returns can be certified to the executive of the 
state. Under that certificate the persons therein named as 
electors, on the same day met and cast their votes for Sam- 
uel J. Tilden for President and Thomas A. Hendricks for 
Vice-President. 

Two objections are filed to that certificate : (1) That it 
is not authenticated according to the Constitution and laws 
of the United States, so as to enable the votes given by 
those four persons to be counted. (2) That the package 
enclosing that certificate, when opened in the presence of 
the two Houses, did not contain any paper from the ex- 
ecutive of the state showing that the persons therein named 
were the electors appointed by the state. Nor is said cer- 
tificate accompanied by any lawful authentication that they 
were appointed to cast the electoral vote of the state. 

Florida, on the 17th of January, 1877, enacted a statute 
creatine; a board of state canvassers, and bv the same 
statute directed that board to proceed to canvass the returns 
of the election of electors held on the 7th of November, 
1876, and to determine and declare who were elected and 
appointed electors at said election, as shown by such returns 
on file in the office of the secretary of state. By the second 
section of the statute the new state board was required to 
canvass those returns according to the fourth section of the 
election law which was in force at the time the election was 
held for the choice of electors, as construed by the supreme 
court of the state. Pursuant thereto the said state board 
was duly constituted, consisting of the secretary of state, 
the governor of the state, the comptroller of public accounts, 
2 



10 

and the treasurer of the state, and they met at the capital 
of the state, on the 19th of January in the same year, and 
made the canvass of the said returns on file in the office of 
the secretary of state, by which it appears that the four per- 
sons designated as the Tilden electors received a majority 
of all the votes ca3t for electors in the several precincts of 
the state, and that they were duly appointed such electors. 

Enough also appears to show that those persons claimed 
title as electors duly appointed under certificate No. 2, and 
that they, on the 6th of December, 1876, instituted a suit in 
the circuit court of the second judicial circuit, in the nature 
of quo warranto, against the Hayes electors, alleging that 
the respondents were not entitled to those offices, and pray- 
ing judgment of ouster against them as wrongfully in pos- 
session of the same. Service was made and the respondents 
appeared and filed an answer. Proofs were subsequently 
taken and the court rendered judgment in favor of the re- 
lators. 

Contemporaneous action upon the subject was also taken 
by the legislature. On the twenty-sixth of the same month 
the legislature passed a statute declaring that the four per- 
sons called the Tilden electors were, on the 7th of Novem- 
ber preceding, duly chosen and appointed electors, and that 
they were from that time entitled to exercise all the powers 
and duties of the office of electors, and had, on the sixth of 
December then next, full power and authority to vote as 
such electors and to certify and transmit their votes as pro- 
vided by law. 

Explicit recognition of their power and authority is there 
declared, and the statute proceeds to ratify, confirm, and 
declare valid all their acts as such electors to all intents and 
purposes, and to declare that they are thereby appointed 
electors as of the day of the prior general election. 

Section two of the same act authorizes and directs the 
governor to make and certify in due form and under the 
great seal of the state three lists of the names of those per- 
sons as such electors, and to transmit the same with an au- 



11 

thenticated copy of that act to the President of the Senate 
of the United States. Three lists of like character were 
also directed to be certified by the governor, and he was 
directed forthwith to deliver the same to the said electors. 

These directions were obeyed by the governor, and on the 
same day he made and delivered to the said electors the 
certificates designated in the proceedings before the Com- 
mission as certificate No 3, which, as well as No. 2, was 
given to the Tilden electors. 

Three grounds of objection are stated in the paper filed 
in opposition to that certificate : (1) That it is not duly cer- 
tified by any one holding the office of governor at the time 
the electors were appointed, nor at the time when they 
exercised their functions, nor until after their duties had 
been fully discharged. (2) Because the alleged proceed- 
ings are ex post facto and do not confer any right to those 
persons to cast the electoral vote of the state. (3) Because 
the proceedings being retroactive are null and void and of 
no effect. 

Mention should also be made that an objection was also 
filed in the case applicable to both of the two preceding 
certificates, in which the objectors deny the validity of those 
certificates upon the ground that certificate No. 1 is in all 
respects regular, valid, and sufficient, and that the electors 
therein named were duly appointed to cast the electoral 
vote of the state. 

Properly analyzed and construed it is clear, from the sev- 
eral objections filed to the certificates, that the returns of 
the state canvassers, including that made by the attorney- 
general, are the only returns called in question, the charge 
being that the return of the state board, which is the basis 
of the Hayes certificate, is false, forged, and counterfeit. 

Exception is also taken by the other side to certificates 
Nos. 2 and 3, but it is not alleged that they are false or 
forged, nor that the returns on which they are based are 
false or manufactured, nor that the election to which they 
refer was not lawfully held and properly conducted. 



V2 

Intelligent inquirers will see at a glance that all of the 
certificates refer to the same election, to wit, to the election 

held on the 7th of November, and that no one of the ob- 
jections call in question either the validity or the regularity 
or fairness of that election. Neither side proposes to insti- 
tute any scrutiny into the votes cast or to require any inves- 
tigation as to the qualification of the voters who cast the 
votes, nor do they attack the conduct of the officers who 
presided in the precincts, nor the returns which the precinct 
officers made to the county canvassers. Every thing of 
that sort may he dismissed from consideration as not within 
the jurisdiction of the Commission, because not submitted 
to its judgment and decision, and the remarks apply with 
equal force to the returns made by the county canvas 
for the reason that none of the objections attack either the 
truthfulness or fairness of those returns, nor do they pro- 
pose any inquiry into the conduct of the officers who made 
those returns. 

Strenuous opposition is made to certificate ~So. 1, and 
those who object to it insist that the return of the state can- 
vassers on which it is founded is false, and the offers of proof 
point out more particularly the specific grounds of the charge. 
Decided opposition is also made to the other two certificates, 
chiefly that the officers who made the instruments were un- 
authorized to give any such certification, and that the certi- 
ficates are of no legal validity. 

Viewed in the light of these suggestions it is clear that 
the argument of inconvenience is a mere hollow pretence 
and that it is entitled to no weight. 

Precinct returns were duly made to the county canvass- 
ers and the county canvassers made due returns to the secre- 
tary of state, where they still remain on file, as appears by 
the certified copies of the same among the papers submitted 
to the Commission by the two Houses. What the objectors 
to certificate No. 1 charge, when expounded in the light of 
the otters of proof, is that the state canvassers unlawfully 
rejected the entire return from the county of .Manatee and 



13 

parts of the respective returns from the counties of Hamil- 
ton, Jackson, and Monroe ; that the state board by those 
unlawful acts, changed the result of the election and created 
the unlawful basis on which certificate No. 1 is founded. 

Both the certificate of Governor Stearns and the certifi- 
cate of the attorney-general are founded upon the same 
county returns, except the returns from the county of Man- 
atee, and parts of the respective returns from the counties of 
Hamilton, Jackson, and Monroe, which were excluded from 
the basis on which Governor Stearns issued his certificate. 
He adopted the basis formed by the state canvassers, exclud- 
ing the whole of the return from one county and parts of 
the returns from the three other counties. 

All the county returns, as before remarked, are on file 
in the office of the secretary of state, and the attorney-gen- 
eral, who was one of the state canvassing board, denying 
the right of the board to reject a county return without 
good cause shown, or to mutilate or tamper with such re- 
turns under any circumstances, dissented from the acts of 
the other two members of the board. Apparently his con- 
duct was open and frank, and he, on the same day, canvassed 
the entire county returns, and finding that the returns when 
honestly counted, elected the Tilden electors, he executed 
certificate "No. 2, and it appears that the four persons therein 
named met on the same day in the same building with the 
persons named in certificate No. 1, and cast their votes for 
President and Yice-President. 

None of these facts can be successfully controverted, as 
all the returns are on file in the office of the secretary of 
state, and duly certified copies of the same, together with the 
original certificates, are now before the Commission, hav- 
ing been submitted by the order of the two Houses in the 
regular course of their action. 

Few, I presume, will deny that it is competent for the 
Commission to take notice of the statutes of the state relating 
to the matter in controversy without any formal proof of 
their legal authenticity. Suppose that is so, then there are 



14 

do matters involved in the issues presented which may not 
be thoroughly examined in a very few hoars. Differ* 

of opinion may exist as to the legal effect of the evidence 
if admitted, but I have yet to Learn that any one denies 
that the alleged facta are capable of being proved by authen- 
tic documents in the archives of the state. Certified copies 
of the record and judgment of the court in the quo warranto 
proceedings are also here, ready to be introduced, and no 
one, I suppose, will deny that a duly exemplified copy of a 
record and judgment between the same parties would be 
admissible in this ease, unless it be held that the action of 
the state canvassers or the certificate of the governor closes 
the door to all investigations and is sufficient to show that 
this Commission is so high that it has no power to investi- 
gate either fraud, perjury, or forgery. 

Extended argument to show that the certificate of the 
governor is not conclusive seems to be unnecessary, as the 
opening counsel supporting certificate Xo. 1 disclaims that 
proposition, and very properly admits that it is only prima 
facie evidence of what it certifies to be true. Such a certi- 
ficate made by an officer charged with the duty of making 
it imports verity, and it is doubtless true that it affords a 
prima facie right in the holder in the absence of any show- 
ing whatever to the contrary. 

Grant that, but I suppose it w T as never heard that evidence 
of a mere prima facie right could have the effect to exclude 
all opposing testimony to show that the right did not exist, 
or that it had no other foundation than fraud and forgery. 
Fraud it is said will vitiate everything, and it is a maxim 
which has fewer exceptions than any other known to the 
common law. 

Evidence of error is sufficient to overcome a prima f 
presumption, but it was never heard that such a presump- 
tion is sufficient to shut out all proof of fraud. With all 
respect to those who advocate that proposition, I must be 
allowed to say that such a decision was never made, and it 
is presumed never will be, by any just and intelligent tri- 



15 

bunal. Considerable time was spent in argument by coun- 
sel wbo support the Hayes certificate to convince the Com- 
mission that they do not maintain any such proposition, and 
I am convinced that if they do, it cannot properly be 
adopted by the Commission. 

Concede that, and it follows that evidence in a proper 
case may be admitted to prove fraud or forgery in the cer- 
tificate given in such a case by the governor of the state. 
Credentials of the kind are founded upon a prescribed 
basis, regulated by law, which is usually dependent for its 
accuracy, not upon the doings of the governor, but upon 
the acts of other public agents. "Whether that basis is truth 
or error, he does not know, and consequently the legal ef- 
fect of his certificate is, whatever may be its form, that it 
appears to him, in view of that prescribed basis, that the 
party interested is duly elected to the particular office in 
question, which is sufficient to show that it would be mon- 
strous to hold that such a certificate is a muniment of title 
which cannot be contradicted. 

Even suppose that is so, still it is insisted by the same 
counsel that the action of the state canvassers, pursuant to 
the fourth section of the state act of the 27th of February, 
1872, is conclusive, and that this Commission, in view of 
the action of that board and of the provision of the state 
law, is not authorized to admit evidence of any kind to 
show that their return is not true or that it is fraudulent, nor 
even that it is a forgery. Startling as the proposition is 
it will require careful examination, in view of that statute. 

Certain persons are designated in the introductory part 
of the fourth section of the statute to meet at a prescribed 
time, at the office of the secretary of state, to form a board 
of state canvassers, and that board is required to canvass 
the returns of the election — meaning the county returns 
filed in the office of the secretary of state — and to deter- 
mine and declare who shall have been elected * * as 
shown by such returns. 

Obviously they are required to canvass the county returns 



16 

filed in the office of the secretary of state, and to deter- 
mine who are elected, as shown by such returns. If the 
provision stopped there it would be clear that the sole duty 
of that board would be to canvass and declare the result 
shown by those returns, but it does not stop there, and cou- 
Bequently it becomes necessary to examine the residue of 
the section. 

They are required to examine those returns and no others, 
and the farther provision is that if any such return shall be 
shown, or shall appear to be "so irregular, false, or fraudu- 
lent" that the board shall be unable to determine the true vote 
for any such officer or member, they shall so certify, and 
shall not include such return in their determination and de- 
claration. Unless the return shall be shown or shall appear to 
be so irregular, false, or fraudulent that the board is unable to 
determine the true vote, they have no authority to reject such a 
return, and they have no jurisdiction to mutilate or alter it 
under any circumstances. Where the return is so irregular, 
false, orfraudulent that they cannot determine the result with- 
out rejecting such a return, they shall not include it in their 
return, but they must certify that fact. It is difficult to see 
why they are required to certify the fact unless their action 
is subject to review. Confirmation of that view is also de- 
rived from the fact that the secretary of state is required 
to preserve and file in his office all such returns, with such 
other documents and papers as he may receive. 

Proof that any such irregular, false, or fraudulent return 
from a county was filed in the office 'of the secretary of 
state is entirely wanting, and nothing of the kind is sug- 
gested in the objections filed by either party; nor would it 
afford any argument to exclude investigation if it were 
otherwise, as the ease shows that all the evidence is pre- 
served in the office of the secretary of state, and certified 
copies of the same are among the papers transmitted to the 
Commission. 

Beyond question the provision assumes that a county 
return may be so irregular, false, and fraudulent that the 



17 

board will be unable to determine the true result unless 
such defective return be rejected; and if so, they shall so 
certify and shall not include such return, but the return is to 
be filed and preserved in the office of the secretary of state. 

None of the objections set up any such state of tilings, 
nor does any one pretend, I think, that any of the returns 
filed in the office of the secretary of state come within the 
category of that provision. Should it be said that the pre- 
sumption is that the board performed its duty, the answer 
to that is that such a presumption is merely a prima facie 
one, which may be overcome by competent proof, and that 
a brief examination of the documents will be sufficient to 
enable the Commission to determine whether the charge 
that the board, in order to change the result of the election, 
were or were not guilty of fraud, perjury, or forgery. 
Opportunity to introduce evidence is asked, and the proper 
response to the request in my judgment is, let the evidence 
determine the issue between the parties. 

Candid men everywhere will agree, I think, that the 
board was directed to include regular returns, and that 
they had no right to exclude any one unless it was so irre- 
gular, false, or fraudulent that if included they w T ould be 
unable to ascertain and determine the true vote or result. 
Those supporting the objections to certificate £To. 1 allege 
and propose to prove that the board threw out returns 
which were neither irregular, false, or fraudulent, in order 
to change the result of the election, and in my opinion 
they are entitled to that privilege if the evidence offered is 
competent and tends to prove the charge. 

Imputations of the kind are explicitly made, and the 
main question, under the order adopted by the Commission, 
is whether evidence is admissible to prove the accusation. 
Xo one here, I suppose, will deny that in general such 
evidence in an issue between party and party is admissible, 
but the argument is that in the case under consideration 
neither Congress nor the Commission has jurisdiction to try 
such an issue. 
3 



18 

Electoral votes are to be transmitted to the President of 
the Senate, and the provision of the Constitution is that the 
President of the Senate shall, in the presence of the Senate 
and the House of Representatives, open all the certificates, 
and that "the votes shall then he counted." 

Wide differences of opinion prevailed, pending the pass- 
age of the act creating the Commission, as to the meaning of 
that clause : one side maintaining that the votes should be 
counted by the President of the Senate, and the other that 
it was both the right and the duty of the two Houses to 
inquire and determine whether the votes returned and 
opened in the presence of the two Houses are the true votes 
given by " the duly appointed electors " of the state. Dis- 
cussion rarely ever surpassed followed. Suffice it to say 
the bill became a law almost by general consent. Parties 
and counsel seem indisposed to open that discussion, nor is 
it my purpose to enter that field, except to say that in my 
judgment the verdict of posterity will be that it is the duty 
of Congress to count the votes and to solve every question 
involved in the performance of that duty. 

Under the act creating the Commission the provision is 
that where more than one return from a state has been 
received by the President of the Senate, the same shall be 
opened by him in the presence of the two Houses, and shall 
be submitted to the Commission to determine which is the 
true and law r ful electoral vote of the state. Written objec- 
tion may be made to such certificates, and when made, if 
there be more than one, the requirement is that all such 
certificates, votes, and papers, and all papers accompanying 
the same, together with the objections, shall be forthwith 
submitted to the Commission, which shall proceed to con- 
sider the same, with the same powers, if any, now poss* 
for that purpose by the two Houses acting separately or 
together. 

Important duties are required of the Commission, as fol- 
lows : (1) They are required to consider all such certificates, 
votes, and papers objected to, and all papers accompanying 



19 

the same. (2) They are required to decide by a majority 
of votes whether any and what votes from such state are 
the votes provided by the Constitution of the United States, 
and how many and what persons were duly appointed elec- 
tors by such state. 

Express requirement is made that the Commission shall 
perform those duties, and the act further provides that they 
" may therein take into view such petitions, depositions, and 
other papers, if any, as shall by the Constitution and now- 
existing law be competent and pertinent in such considera- 
tion." 

Duties such as those required cannot be properly per- 
formed without evidence nor without hearing the parties 
interested. By the express words of the act the Commis- 
sion may take into view such petitions and depositions, if 
admissible by the Constitution and the existing laws, pro- 
vided they are pertinent to the matter under considera- 
tion, which shows to a demonstration that Congress never 
intended that the Commission should determine the ques- 
tions submitted without evidence, any more than without 
giving the parties an opportunity to be heard. 

Conclusive support to that view is also derived from the 
form of the oath the commissioners are required to take 
and subscribe before entering upon the duties prescribed by 
the act. Every member of the Commission solemnly en- 
gaged by that oath that he would impartially examine and 
consider all questions submitted to the Commission and a 
true judgment give thereon, agreeably to the Constitution 
and the laws. 

Two of the questions submitted are as follows : (1) What 
votes from the state are the true votes ? (2) What persons 
were duly appointed electors in such state ? You are all 
sworn to impartially examine and consider those questions 
and a true judgment give thereon, agreeably to the Consti- 
tution and the laws. How can you comply with that re- 
quirement unless you admit in evidence the documentary 
evidence from the office of the secretary of state and an 



20 

exemplified copy of the record and judgment in the suit 
between these contestants. 

Jurisdiction is the [tower to hear and determine, and it is 
to me pasl comprehension how any person accustomed to 
Legal investigation can read the actof Congress creating the 
Commission and still entertain a doubt that the Congress 
intended that the Commission should examine and consider 
those two questions and give a true judgment thereon, 
agreeably to the Constitution and the laws. Common ex- 
perience is sufficient to convince every person of ordinary 
intelligence that a true judgment cannot be given without 
evidence nor without a hearing. Tribunals of justice are 
not expected to shut their eyes to evidence and decide 
blindly without hearing the parties. 

Unless parties are allowed to give evidence they are not 
benefited by being heard upon the merits of the contro- 
versy. By the terms of the order under which they have 
been heard the merits are excluded, and if the Tilden elec- 
tors are not permitted to give evidence the merits must 
be decided in favor of the other [tarty without any hear- 
ing. Worse than that; the case was practically decided 
before it was submitted to the Commission, and it must be 
sent back without any one of the questions presented in the 
objections having been examined or considered by the Com- 
mission. 

Congress never would have passed the law if those who 
favored its passage had supposed that the only duty the 
Commission had to perform was to certify to the two Houses 
the enumeration made by the state board of canvassers. 
Nor w T ould the President of the United States have consid- 
ered it his duty to send a special message to Congress 
commending the measure if he had supposed that the juris- 
diction of the Commission was limited to a mere clerical 
enumeration of the votes certified and transmitted to the 
President of the Senate. 

Two branches of the government were stopped to enable 
the members of the Commission to sit and hear these cases, 



21 

and now it is gravely contended by members of the tri- 
bunal that the Commission can neither bear evidence nor 
decide the questions presented in the written objections 
submitted to the Commission by the two Houses, beyond 
the mere enumeration of the votes. Duties of the kind are 
usually performed by a county judge upon the desk before 
him, without referring the cause to a master. Others must 
argue such a question, if they see fit, but I cannot, as it 
seems to me that the proposition calls in question the 
wisdom of Congress and involves a theory which is past 
belief. 

Both Houses of Congress knew full well that there were 
in the contested cases charges of fraud, perjury, and forgery, 
and it is clear to a demonstration, in my judgment, that 
those charges in respect to the returns made by the state 
board should be examined, considered, and decided by this 
tribunal, so far as the charges are involved in the objections 
filed to the certificates submitted to the Commission by the 
two Houses of Congress. 

When the Commission was organized the whole country 
expected that those charges would be heard and that a true 
judgment would be given thereon, and sound discretion and 
a due regard to the words of the act of Congress forbid the 
conclusion that the action of the state board in rejecting the 
county returns from the county of Manatee and parts of 
the returns from the three other counties named is a matter 
the Commission cannot examine, consider, and decide, the 
charge, as alleged, involving fraud, perjury, and forgery. 
Such a decision, in my judgment, is forbidden by every 
consideration of law T and justice, and if made, I fear that it 
will shock the public sense, and when the knowledge of it 
reaches other lands I shall be greatly disappointed if it does 
not shock the wise and just throughout the civilized world. 

Without the right to introduce evidence a trial in any 
case is a mockery, and in this case the refusal to hear evi- 
dence is the height of injustice, as it amounts to an ex-part e 
decision in favor of the persons claiming title under certifi- 



22 

cate No. 1, without having examined or considered anyone 

of the objections filed to that supposed muniment of title. 

Explanations to sustain that proposition are unnecessary, 

as it is obvious that they claim title under the certificate of 
Governor Stearns, founded upon the return of the board of 
Btate canvassers. Unlike that, the Tilden electors allege that 
the return which constitutes the basis of that certificate is 
false and fraudulent and that the canvassers tortiously and 
unlawfully excluded from the count the votes of one county 
and part of the votes from three other counties, for the ex- 
press purpose of changing the result and of defeating the 
well-known choice of the people at the general election. 

Formal charges of the kind are made in the objections, 
and are also contained in the oilers of proof, and the coun- 
sel opposing the certificate in question allege that authentic 
documents are at hand to prove those charges, and to show 
that the certificate signed by the attorney-general, which is 
also based upon the county returns filed in the office of the 
secretary of state, expresses the true result of the election, 
the sole difference being that the attorney-general in his 
computation included the return from the county of Man- 
atee and the votes from the other three counties which were 
excluded by the board of state canvassers, and assertions of 
the kind may be investigated without difficulty and in a 
brief period. 

Contest arose at the same time between the rival candi- 
dates for governor, in consequence of which a suit was 
commenced in the supreme court of the state on the rela- 
tion of George F. Drew, one of the candidates, v. Samuel B. 
McLinn & als., which was decided on the 25th day of De- 
cember, 1876, the court holding to the effect that the state 
canvassers had no authority to reject a county return or 
the votes given, except when the canvassers were unable to 
ascertain for whom they were cast, for the reason specified 
in the fourth section of the act prescribing their duties. 

Acquiescence in that decision was universal, and the leg- 
islature, on the seventeenth of January following, passed a 



28 

law creating a new board of state canvassers, and directed 
that a new canvass should be made of the county returns 
of the election held on the 7th of November in the pre- 
ceding year. Agreeably to that law the board was organ- 
ized, and they re-canvassed the same returns and came to 
the same result as that previously reached by the attorney- 
general of the state. 

By the third section of the act they were required to 
make and sign a certificate containing the whole number 
of votes given at the election and to declare the result, and 
the further requirement is that the certificate shall be re- 
corded in the office of the secretary of state. Kequirements 
of the kind were all fulfilled and the certificate was duly 
made and signed, which is the basis of certificate No. 3, 
executed by the present governor of the state. 

Viewed in any light it must be admitted that it is con- 
firmation strong as Holy Writ that certificate No. 2, signed 
by the attorney-general, is true, and that it gave the true 
and honest result of the election. Investigations made by 
the legislature induced that body to come to the same con- 
clusion, and on the 26th of January following the legislature 
passed a statute in which it is enacted that the Tilden elec- 
tors, on the 7th of November previous, were duly chosen 
and appointed electors by and on behalf of the state and in 
the manner directed by the legislature. " Each state shall 
appoint, in such manner as the legislature thereof may di- 
rect," the number of electors to which the state is entitled, 
subject to the exception therein contained. 

None of these proceedings were intended to choose new 
electors, but merely to ascertain who were elected at the 
antecedent general election, and they show beyond perad- 
venture that the return of the first board of state canvassers 
was false and fraudulent, and that the result could only 
have been reached by perjury and forgery. 

Power is certainly vested in a state to appoint electors in 
such manner as her legislature shall direct, and all agree 
that the statute of the state required that the electors should 



24 

be chosen by the qualified voters of the state ; nor is it con- 
troverted by any one that the election held on the 7th of 
November, 1876, was duly notified and regularly conducted; 

nor that the returns of the local otficers were regularly and 
in due form of law made to the county canvassers. 

Prescribed duties are to be performed by the county can- 
vassers, and they are required to transmit their returns to 
the secretary of state, and it is certain that the objections 
filed to the respective certificates do not impugn the county 
returns, nor is there any evidence before the Commission 
to justify any one in calling those returns in question as 
irregular, false, or fraudulent. Imputations of the kind are 
explicitly made against the returns of the board of state 
canvassers, as before fully explained. 

Electors are to be appointed by the state, and the state 
very properly claimed the right to inquire and ascertain 
who had been chosen at the election held for that purpose. 
Charges of fraud, perjury, and forgery hanging over the old 
board, the legislature, by a public law, approved by the 
governor, made provision for a new board, and directed the 
new board to canvass the same county returns on file in the 
office of the secretary of state, and to report the result of 
their doings. They performed that duty, and the legisla- 
ture, by a public act, ratified their doings, and enacted that 
the Tilden electors were duly chosen on the 7th of Nbvem- 
ber previous, and that they are the electors duly appointed 
by the state. 

Opposed to this there is nothing to support the preten- 
sions of the Hayes electors, except the certificate of Gover- 
nor Stearns, founded upon the return of the old board of 
state canvassers. 

These proceedings constitute the basis of certificate Xo. 3, 
and they show that the proceedings and the certificate were 
intended to confirm as true what is certified in the certifi- 
cate of the attorney-general, and it is clear, in my judgment, 
they are properly admissible, and amply sufficient for that 
purpose. 



25 

Matters of the sort may be readily investigated in a very 
brief space of time, as every impartial person must see from 
the very nature of the transactions. 

States may appoint electors in such manner as their legis- 
lature may direct, and the judiciary of the state may inter- 
pret such laws, and the decision of the state court in such a 
case must be regarded as the rule of decision, as appears by 
the express enactment of Congress. — (1 Stat, at Large, 92. 
McKeen vs. Delancy, 5 Cran., 22.) Circuit courts in that 
state have power to issue writs of quo warranto and all other 
writs proper and necessary to the complete exercise of their 
jurisdiction. — (State Const., Art. VI., sec. 8.) 

Proof of the most satisfactory character is exhibited in 
the papers transmitted to the Commission that the old 
board of state canvassers did not complete their canvass 
until the 6th of December, 1876, and that the certificate 
given to the supposed Hayes electors bears date on that 
day. It appears, also, that the certificate given to the Til- 
den electors and signed by the attorney -general bears the 
same date, as exhibited in the documents printed by order 
of the Commission. Both sets of electors met at the capi- 
tal of the state on that day, as required by law, for the pur- 
pose of executing the functions of electors, but the Hayes 
electors before they voted were served with process in 
quo warranto sued out from the circuit court of the second 
judicial circuit of the state by the Tilden electors. They 
sued in their own behalf as well as in behalf of the people 
of the state, as they had a right to do under the law of the 
state, inasmuch as the attorney-general refused to institute 
the proper proceeding. 

Service being made, the respondents appeared and filed 
an answer. Subsequently proofs were taken on both sides, 
and the parties having been fully heard, the court, on the 
25th of January following, entered a decree in favor of the 
relators. 

By that decree the court adjudged (1) That the Hayes 
electors were not, nor was any one of them, elected, chosen, 
4 



20 

or appointed electors. (2) That they were not, on the Bald 
6th of December, or at any other time, entitled to assume 
or exercise any of the powers and functions of such elec- 
tors. (3) That they were upon the said day and date mere 
usurpers, and that all and singular their acts and doings as 
such were and are illegal and void. (4) That the Tilden 
electors all and singular were at said election duly elected, 
chosen, and' appointed electors of the state, and were on 
the said (3th of December entitled to be declared elected, 
chosen, and appointed as such electors and to have and re- 
ceive certificates to that effect, and at all times since to ex- 
ercise and perform all and singular the powers and duties 
of such electors. 

Prior to the rendering of the decree in this case the new 
board of state canvassers had made their report, and on 
the following day the legislature passed the act to declare 
and establish the appointment of electors, by which it is en- 
acted that the Tilden electors were, on the 7th of November 
previous, duly chosen and appointed as such, with all the 
powers incident to such offices. 

Repeated admissions have been made during the discus- 
sion that a state may determine what persons the qualified 
voters have chosen and appointed electors of President and 
Vice-President, but the proposition is advanced that the de- 
termination must be made before the electors meet and cast 
their votes, and that it cannot be made at any subsequent 
time. Antecedent investigation could not be made in this 
case before the electors voted, for the reason that the old 
board of state canvassers did not make their return until 
the day when the votes were cast ; nor were the Hayes elec- 
tors furnished with the certificate of the governor until that 
day. All that could be done by the way of investigation 
before that time was done, as appears by the certificate of 
the attorne}'-general, which was also given to the Tilden 
electors on the same 6th of December. Without a mo- 
ment's delay the Tilden electors sued out a writ of quo war- 
rantc against the usurpers, and by extreme diligence caused 



27 

it to be served on them oue hour before they cast their 
votes. 

Weighed in the light of these suggestions, the proposition 
that subsequent investigation cannot be made is monstrous, 
as it shows a mockery of justice. You may investigate be- 
fore the votes are cast when it is impossible for want of 
time, but you shall not after that, as you would then have 
an opportunity to ascertain the truth ! 

Canvassers may, if they see fit, keep back their report 
until the day appointed for the electors to meet, and if they 
do so the effect of the proposition is that there can be no in- 
vestigation, no matter how enormous the fraud has been. 
Forgery and fraud ought not to go unexposed, but if the 
proposition submitted is correct it necessarily follows that 
the state is powerless to protect itself from the consequences 
of such crimes. 

Whatever could be done by every branch of the state 
government to establish the truth w r as done, and if it now 
be decided that their efforts are fruitless, the effect must be 
to offer impunity in the future to all scheming officers who 
may tamper with subordinate returns in order to change the 
result of an election. 

Opposing candidates for governor of the state were in the 
field at the same election, and it appears that the board of 
state canvassers threw out sufficient of the county returns 
to elect the incumbent who gave the certificate to the Hayes 
electors. His opponent, the present governor, (Drew,) 
brought mandamus against the members of the canvassing 
board, praying that they may be decreed to correct their 
return. Process was served and the respondents appeared 
and filed an answer. Both sides took proofs and the parties 
went to trial. 

Authority to issue mandamus is vested in all the courts 
of the state. The proceeding in this case was in the supreme 
court, and that court decreed that all that the state board of 
canvassers can do in such a case under the statute creating 
it, must be based upon the returns; that everything they 



28 

are authorized to do is limited to what is sanctioned by the 
authentic and true returns before them ; that their final act 
and determination must be such as appears from, and is 
shown by, the returns from the several counties to be cor- 
rect; that they have no general power to issue subpoenas, 
to summon parties, to compel the attendance of witan 
to grant a trial by jury, or to do any act hut determine and 
declare who has 6< n elected, as shown by flu returns. — (State 
ex pel. George F. Drew v. Samuel B. McLin & als., 15 
Florida R.) 

Special reference is made in that ease to the return from 
the county of Manatee and to those from the three counties 
of Hamilton, Jackson, and Monroe. By that opinion it ap- 
pears that the answer set up that there was such irregularity 
and fraud in the conduct of the election that the board could 
not ascertain the true vote. Responsive to that defence the 
court say that " the facts stated in the answer present a judi- 
cial question beyond the power and jurisdiction of the hoard, 
that a return of votes cast in a county at such a general elec- 
tion, duly signed by the proper officers and regular in form, 
* * * is a return which the state officers must count, as 
it is neither irregular, false, nor fraudulent within the mean- 
ing of the statute." 

Comment is also made in the same opinion upon the ac- 
tion of the state board in respect to the other three counties, 
and the decision is to the effect that if the return is genuine 
and in due form, the question whether the irregularities 
shown to have existed at the election are sufficient to reject 
the same is a question of law not within the power of the 
board to determine, that what is fraud insuch an inspector is 
a question of law. so also is the question whether such a fraud 
by inspectors can vitiate an election. Both are judicial ques- 
tions beyond the power of the hoard to determine. 

Unless it he denied that the construction of a state statute 
given to it by the supreme court of the state furnishes the 
rule of decision, it would seem to follow that the hoard of 
state canvassers exceeded their jurisdiction, and if so all must 
concede that their acts are null and void. 



29 

Five years before that, the supreme court of the state de- 
cided that the object of the statute in question is to ascertain 
the whole number of votes cast and who had received the 
highest number of votes, so that the choice of the majority 
of the voters might be ascertained and respected, that if the 
facts stated by the relator were correct, that returns made 
had not been included in the canvass, then the board of state 
canvassers had not performed their duty, that their duties 
are ministerial, beyond that of determining that the papers 
received by them as returns are genuine authentic returns 
of the election, that they are required by law to meet on 
a given day for the purpose, and may adjourn from day to 
day until their duties are accomplished, and in case legal 
returns are received by them at any time before they com- 
plete the canvass, which would have been counted if re- 
ceived before the canvass was commenced, it is their duty 
to include such in the canvass and certificate, and if they 
refuse they may be compelled by the writ of mandamus to 
complete the canvass of all the returns received, and to 
certify the result according to law. — (State ex. rel. Bloxham 
v. The Board of State Canvassers, 13 Florida, 73.) 

Proper opportunity to investigate such charges ought to be 
permitted at some time, and if it is not possible to accom- 
plish that object before the day appointed for the meeting 
of the electors, justice and necessity demand that it shall 
be allowed subsequent to that time, for it would be too great 
a triumph for injustice to hold that it must be postponed 
forever because the outrage was committed so near to the 
time designated for the performance of the duty that it 
was impossible to institute and close the scrutiny before the 
accessaries in guilt have actually enjoyed the stolen privi- 
lege which belonged to the complaining party. — (Queen 
v. Vestrymen of Pancras, 11 Ad. & Ell., 25.) 

Three points were decided by the exchequer chamber in 
Rochester v. The Queen, 1 Ell., Bl. & Ell., 1031, which sup- 
port the proposition that it was not too late to make the 
investigation : (1) That the court ought to compel the per- 



30 

formance of a public duty by a public officer, although the 
time prescribed by statute for the performance of the same 
has passed. (2) That if the public officer to whom belongs 
the performance of such a duty has in the meantime quitted 
his office and has been succeeded by another, it is the duty 
of the successor to obey the commands of the court. (3) 
That all statutes are to be construed with reference to the 
known, acknowledged, recognized, and established power of 
the proper court to superintend and control inferior juris- 
tions and authorities of every kind. 

Due service of process in the quo warranto suit was made 
at the earliest possible moment, and it is not even suggested 
that any greater dilligence could have been employed in 
bringing the litigation to a close. Prompt investigation 
was made by the new board of state canvassers, and the 
legislature enacted the statute declaring that the Tilden elec- 
tors were duly chosen and appointed the next day after the 
decree was entered in the quo warranto suit. Neither the pub- 
lic nor the citizens have any power to defeat the machina- 
tions of fraud, perjury, and forgery if the measures adopted 
for that purpose in this case are held to be ineffectual and 
insufficient. 

For these reasons I am of the opinion that the evidence 
offered should be admitted and that the other side should 
be permitted to give evidence in reply. 

Debate being closed the Commission adopted the follow- 
ing order, moved by Mr. Justice Miller : 

Ordered, That no evidence will be received or considered 
by the Commission which was not submitted to the joint 
convention of the two Houses by the President of the Sen- 
ate, with the different certificates, except such as relates to 
the eligibility of F. C. Humphreys, one of the electors. 

Adopted — yeas 8, nays 7. 

Commissioner Abbott moved the following : 

Ordered, That in the case of Florida the Commission will 
receive evidence relating to the eligibility of Frederick C. 



31 

Humphreys, one of the persons named in certificate No. 1, 
as elector. 

Adopted — yeas 8, nays 7. 

Notice was given to counsel of the result and that the 
Commission was ready to proceed with the case. Witnesses 
were examined on both sides in respect to the eligibility of 
Frederick C. Humphreys, as an elector, and their testimony 
is fully reported in the record of the proceedings. The testi- 
mony being closed, counsel were heard upon the merits, un- 
der the third rule prescribed by the Commission, and at the 
conclusion of the argument the spectators retired and the 
Commission went into consultation with closed doors. Dis- 
cussion ensued, in which several of the members of the 
Commission participated. During the discussion as to the 
eligibility of Frederick C. Humphreys, Mr. Justice Clif- 
ford stated his conclusions on the matter, as follows : 

1. That no person is eligible as an elector, or can be law- 
fully appointed as such, who holds an office of trust or profit 
under the United States at the time of the election or ap- 
pointment. 

2. That the office of shipping commissioner is an office 
of trust and profit under the United States. 

3. That Frederick C. Humphreys was legally appointed 
to that office. 

4. That the evidence introduced fails to show a complete 
legal resignation of the office by the incumbent before the 
7th of November, 1876. 

5. That if he had performed official acts after the date of 
the correspondence between him and the judge of the cir- 
cuit court, his acts would have been legal. 

6. That if the incumbent had subsequently decided, with 
the consent of the judge, to retain the office, he might have 
done so without a new appointment, because his letter to 
the judge had never been filed. 

7. That inasmuch as the evidence shows that both the 
judge and the incumbent regarded the resignation as com- 
plete and it appears that the incumbent never did perform 



LIBRARY OF CONGRESS 

nouiiiioiiiiiniiiii* 

021 051 483 1 



.°>2 



any subsequent official act, T am of the opinion that, in an 
equitable view, the person named ought to be regarded as 
having been eligible as an elector on the day when theeleo- 
tion was held. 

Other members of the Commission discussed the whole 
case in view of the papers submitted to the Commission by 
the President of the Senate, but Mr. Justice Clifford 
believing that discussion would be unavailing and useless, 
took no further part in the debate. 

Commissioner Huxtox moved an order to the effect that 
the Tilden electors were duly appointed by the state, and 
their votes as certified in certificate No. 2 are the votes pro- 
vided for by the Constitution. Rejected — yeas 7. nays 8. 

When that result was announced Commissioner Garfield 
moved that the Hayes electors were duly appointed and 
that the votes cast by them are the votes provided for by 
the Constitution. Also, that Commissioner Edmunds, Mr. 
Justice Bradley, and Mr. Justice Miller be appointed a 
committee to draft a report of the action of the Commis- 
sion, as required by law. Adopted — yeas 8, nays 7. 

Xone of the subsequent proceedings in the case need be 
reproduced, as they are given in full in the Congressional 
Record. 

Tjike submissions were made to the Commission in the 
cases of Louisiana, Oregon, and South Carolina, the pro- 
ceedings in which cases are also published in the same re- 
cord, but Mr. Justice Clifford did not participate in those 
discussions, having become thoroughly convinced that noth- 
ing he could say would be of any public benefit. 



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